Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
The Prosecutor v. Francis Kirimi Muthaura,
Uhuru Muigai Kenyatta, Mohammed
Hussein Ali
In his 15 December 2010 application, the Prosecutor
sought charges against Muthaura, Kenyatta and
Ali for five counts of crimes against humanity,
namely: murder; 880 deportation or forcible transfer
of population; 881 rape and other forms of sexual
violence; 882 other inhumane acts; 883 and persecution
on political grounds. 884 In his application, the
Prosecutor linked the crimes to attacks in specific
locations, in particular: Naivasha, Nakuru, Kisumu and
Kibera. Having analysed the information submitted
to it by the Prosecutor, in its 8 March 2011 decision
issuing Summonses to Appear for Muthaura, Kenyatta
and Ali, Pre-Trial Chamber II found there were
reasonable grounds to believe that murder and forcible
transfer of population as crimes against humanity
were committed. The Chamber also found there were
reasonable grounds to believe that rape as a crime
against humanity was committed as part of the
Nakuru attack. However, it found that the Prosecutor
failed to provide any evidence substantiating the
claim that rape was committed as part of the attack
in Naivasha. 885 The Chamber also found there were
reasonable grounds to believe that persecution as a
crime against humanity was committed. 886
The charge of other forms of sexual violence in the
Prosecutor’s application for Summonses to Appear
was based on acts of forcible circumcision of Luo men.
In a worrisome interpretation, the Chamber did not
consider these acts to be of a ‘sexual nature’, and
found that they should in fact be classified as ‘other
inhumane acts’. 887 This issue is discussed in more
detail, below.
Furthermore, with regard to the alleged inactivity of
the Kenyan Police Forces during the attack on Nakuru
and Naivasha, the Chamber noted, without elaborating
on or providing any detailed legal reasoning for its
findings, that the Prosecutor submitted that these
acts were committed pursuant to an ‘organisational’
policy, without alleging the existence of ‘a State policy
by abstention’. 888 Similarly, although it found there
were reasonable grounds to believe deaths, injuries
880 Article 7(1)(a).
881 Article 7(1)(d).
882 Article 7(1)(g).
883 Article 7(1)(k).
884 Article 7(1)(h).
885 ICC-01/09-02/11-1, para 26.
886 ICC-01/09-02/11-1, para 28.
887 ICC-01/09-02/11-1, para 27.
888 ICC-01/09-02/11-1, para 24.
and rapes were committed in Kisumu and Kibera, the
Chamber found that the Prosecutor ‘failed to provide
an accurate factual and legal submission … to examine
whether the acts of violence were part of an attack
pursuant to or in furtherance of a State policy’. 889
While the Chamber may simply have intended to
highlight the defects in the Prosecution’s pleading, due
to the lack of detailed discussion or legal reasoning
in the decision as it was drafted, the findings of the
Chamber could be construed as adopting a restrictive
interpretation of the background requirements for
crimes against humanity, essentially holding that, in
order to find state actors responsible for crimes against
humanity, the crimes must be committed pursuant
to or in furtherance of a state plan or policy, rather
than an organisation plan or policy. The implications
of this are not immediately obvious but are potentially
very far-reaching. If a general in the national armed
forces of a country were to launch a coup against the
government by means of a widespread or systematic
attack against a civilian population, this would
ordinarily give rise to responsibility for crimes against
humanity committed pursuant to an organisational
plan or policy (namely installing the military general
as the new head of state). Applying the logic of the
Pre-Trial Chamber to this hypothetical situation,
as both the military general and the troops under
his command are considered to be state actors, the
Prosecution would have to provide evidence of a plan
or policy, explicitly or by abstention, on the part of
the state (namely the government being targeted by
the coup) to commit the crimes against humanity
in question in order to hold the general or troops
criminally responsible.
In addition, the Chamber found that the Prosecutor
failed to provide material to establish that there
were reasonable grounds to believe that the events
in Kisumu and/or Kibera could be attributed to
Muthaura, Kenyatta and/or Ali. 890 The Chamber thus
geographically limited the charges to Nakuru and
Naivasha only. Following the Chamber’s interpretation
of the chapeau requirements of crimes against
humanity as set out in its 8 March decision issuing
Summonses for all six individuals, organisational
actors cannot commit crimes according to a state
policy, nor can state actors commit acts pursuant to an
organisational policy. This reading of Article 7 of the
Rome Statute potentially removes a whole range of
acts from the Court’s jurisdiction, seeming to conflict
with the intention of the drafters of the Rome Statute.
It also appears to contradict the literal significance
of the wording of Article 7(2)(a), which states that
crimes against humanity involve the commission of
889 ICC-01/09-02/11-1, para 31.
890 ICC-01/09-02/11-1, para 32.
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